Smith v. Shackleford

• Decision Date: 04 October 1926
• Citation: 92 Fla. 731,110 So. 358
• Parties: SMITH v. SHACKLEFORD et al.
• Court: Florida Supreme Court

110 So. 358

92 Fla. 731

SMITH v. SHACKLEFORD et al.

Florida Supreme Court, Division A.

October 4, 1926

Suit by R. W. Shackleford and another against H. Mason Smith for specific performance. From a decree for complainants defendant appeals.

Reversed.

Syllabus by the Court

SYLLABUS

Authority of one assuming to act as agent for owner in contracting for sale of lands must be established. The authority of one who has assumed to act as agent of the owner in the execution of what purports to be a completed and binding executory contract for the sale of lands must be established as in any other case of agency.

Authority of agent to execute binding memorandum for sale of lands may be created by parol or implied from acts, conduct circumstances, and relations of parties (Rev. Gen. St. 1920 § 3872). The authority of an agent to enter into an agreement for the sale of lands, and to execute a completed and binding note or memorandum thereof on behalf of his principal, may be created by parol, and may therefore be implied from acts conduct, and circumstances, including the relations of the parties.

Authority to bind principal in sale of land may not be inferred solely from employment as agent, when circumstances are consistent with employment as mere agent or broker, in absence of showing of grant of greater authority. An agent's authority to bind his principal in the sale of land may not be inferred solely from his employment as such agent, whether he be employed to 'procure a purchaser' or to 'effect a sale,' when the circumstances are entirely consistent with his employment as a mere agent or broker, and in the absence of other circumstances clearly indicating the grant of such greater authority.

Appeal from Circuit Court, Hillsborough County; F. M. Kobles, judge.

COUNSEL

J. T. Watson and H. H. Cole, both of Tampa, for appellant.

T. M. Shackleford, Sr., of Tampa, for appellees.

OPINION

STRUM J.

This appeal is from a final decree in a suit in equity awarding specific performance of a supposed agreement to convey land. The owner of the land was defendant below, and is appellant here; the suit being brought by the purchasers as complainants below.

The written memorandum relied on by the purchasers as being a compliance with the statute of frauds (section 3872, Rev. Gen. Stats. 1920) was not signed by the owner himself, but was signed by one whom the purchasers claim was the agent of the owner, with lawful authority to bind the latter by executing the memorandum of the agreement.

The statute provides that no action shall be brought upon any contract for the sale of lands, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, 'or by some other person * * * thereunto lawfully authorized.' When the purchaser relies upon the quoted clause of the statute, and deals with one who has assumed to act as agent of the owner, not merely to enter into a negotiation, or to receive proposals, but to execute what purports to be a completed and binding executory contract for his principal, the authority of such agent must be established as in any other case of agency, except where regulated by statute. Roby v. Cossitt, 78 Ill. 638; Taylor v. Merrill, 55 Ill. 52; Fitch v. Boyd, 55 Ill. 307; Bissell v. Terry, 69 Ill. 184; Keim v. Lindley (N. J. Ch.) 30 A. 1063; Hadfield v. Skelton, 69 Wis. 460, 34 N.W. 397; Pomeroy's Spec. Perf. (3d Ed.) p. 193. In this state the statute does not specifically prescribe the mode of conferring upon another the requisite authority to execute a written memorandum which will bind the owner. Since the note or memorandum is not required to be under seal, the authority of an agent to enter into such an agreement may be created by parol (Beekam v. Sonntag Inv. Co., 67 Fla. 293, 64 So. 948), and may therefore be implied from acts, conduct, and circumstances, including the relations of the parties (Worall v. Dunn, 5 N. Y. [1 Seld. 229], 55 Am. Dec. 330; Fisher v. Bowser, 41 Tex. 222; Rutenburg v. Main, 47 Cal. 213; Conaway v. Sweeney, 24 W.Va. 643; Campbell v. Fetterman, 20 W.Va. 398; Roehl v. Haumesser, 114 Ind. 311, 15 N.E. 345; Linn v. McLean, 80 Ala. 360). A subsequent valid ratification may also bind the owner.

In this case Mr. Crowder, the supposed agent, and Dr. Smith, the owner, were the only witnesses introduced upon the question of the existence and scope of the supposed agency. As a witness for the purchasers, Mr. Crowder's testimony is in part as follows:

'I telephoned Mr. Smith one morning, and asked him about some land he had recently bought, and he told me at that time that he thought that he would sell either part or all of the property, and he asked me to call him again; that he wanted to get in touch with his brother, as he had some interest with him. I called him again on the morning of April 4th, and asked him if he had seen his brother, and he said 'Yes,' that they were willing to sell either piece of property, but would not sell both of them, and I asked him what price. I asked him on what kind of basis he would sell it. We had already discussed prices and terms beforehand, but nothing was definitely settled that morning, and he gave me a price, as I remember it, of $4,000 on a basis of $1,000 cash, and the balance to be paid in one and two years. * * *

'Q. Well, what else happened? A. In the morning after I got him to list the property I got in touch with Mr. R. W. Shackleford, and I told him that we had this property for sale, and I felt sure that he was interested in that section on account of his having been interested in another piece that he did not get. That was why I listed him. * * *'

Referring to a subsequent conversation, Mr. Crowder further testified:

'That was Thursday. I had to go back in at 5 o'clock on the same day and Dr. Smith said then that he did not want to option the property, and I told him that was all right; that since I talked to him that I had taken a check for deposit from Mr. Shackleford and Mr. Mellon, and that the sale had already been consummated. He stated then that he did not want to sell the property, and I told him that it was too late, and it had already been sold.'

The following also appears in Mr. Crowder's testimony:

'Q. Please state, Mr. Crowder, whether or not he (the defendant) definitely during any of these conversations over the telephone or personally placed the property described in the bill of complaint in your hands for sale at the price and on the terms stated in the receipt that you gave Mr. Shackleford. A. Yes, absolutely.

'Q. During any of these conversations or any subsequent conversation which you have had with Dr. Smith, did he ever deny having given you that authority? A. Never, no, sir. * * *

'Q. As a matter of fact, during this conversation Saturday morning between you and Dr. Smith and Mr. Cole, did or did not Dr. Smith admit that he had made the sale of the property at the price and terms provided you would make it snappy? A. Yes, sir.

'Q. And did you ask him if one...